2017 Harvest

Tuesday, August 4, 2015

The Manitoba Court of Queen's Bench has dismissed a claim for spray damage caused to nursery trees (Roundup from a neighbouring wheat field) on the basis that the applicable limitation period had expired. The key issue was the characterization of the trees - were they fixtures to the real property (the land) or were they chattels (movable property not affixed to the land)? If they were fixtures, then a six-year limitation period would apply. If they were chattels, a two-year limitation period would apply. The action was commenced nearly four years after damage to the trees was first observed.

What is annexed or attached to the land becomes part of the land (a fixture), but there must be an intention to annex or attach evidenced by the degree of annexation and the object of the annexation. In this case, the claimant argued that the trees were growing crops and, therefore, part of the real property (the land). The defendants argued that the trees were planted only for the purpose of storage until they would be sold or used by the claimant, remaining as chattels (not fixed to the land).

The Court sided with the defendants and found that the nursery trees were chattels. They were treated as the claimant's "stock in trade - as inventory". The trees were never intended to be permanently attached to the land or to constitute an improvement to the land. As a result, the two-year limitation period applied and barred the claim for damages.

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John D. Goudy, Lawyer

John is a litigator whose practice is focused in the areas of commercial and environmental litigation, expropriation law, energy regulation, and regulatory offences. He is particularly interested in agricultural issues and the regulation of agricultural land use, and lives and works on his family’s cash crop farm north of London, Ontario with his wife and three kids.

ACI Published Author

Law of the Lands provides legal information of interest to landowners. If you require legal advice about your particular situation, please click on John's profile for contact information or visit scottpetrie.com.